Episode 114: The Litigation Process

Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals. Brought to you by SVMIC.

J. Baugh: Hello everyone, and welcome to this episode of Your Practice Made Perfect. My name is J. Baugh, And I'll be your host for today's episode. Today, we're going to be talking about understanding litigation, and to help us talk about this important topic is Wendy Longmire. Wendy, welcome to the show.

Wendy: Thanks, J. I'm glad to be here.

J. Baugh: Well, we're glad to have you here. Before we start talking about the litigation process, maybe you could give us just a short introduction about yourself.

Wendy: Okay. My name is Wendy Longmire. I'm a partner at the law firm of Ortale Kelley, and I have been here, gosh, I started doing the math, 33 years, which is hard to believe. But time flies when you're having fun.

J. Baugh: That's right. It sure does.

Wendy: It does. And we are here in Davidson County, Tennessee, Nashville. I had a one-year clerkship with a judge in Fifth Circuit Court before starting to practice law, and I've been here ever since. And I do litigation, civil litigation, and primarily defense, and a great deal of healthcare liability defense litigation.

J. Baugh: Well, Wendy and I have worked together on several cases. I'm one of the claims attorneys at SVMIC, and looking forward to spending some time talking to Wendy about litigation and how that works. So, today we'll be discussing the litigation process. We know that as a physician, you know medicine. And so, Wendy is here to help you understand a bit more about the law. Let's start off in the beginning stages of a lawsuit. What should you expect when or if you receive notice that you're going to be sued?

Wendy: Well, that's obviously where most of these matters begin. And that is either in, for example, the state of Tennessee requires a notice letter prior to suit being filed. That's not true for every state. So it could actually be a summons that you receive. Both of those are unwelcome invitations, and often are surprising to receive. One may be served by a sheriff, and one be actually just by certified mail. But, in any event, once you receive that and you open those papers, be it a notice or a lawsuit, really your first step at that point is to act. Act, but of course carefully. And that would be to notify your carrier, notify SVMIC, regardless if it's a notice or if it's a lawsuit, notify them promptly. And you will be speaking in no time with a claims attorney, such as J. Your communication is privileged, and you can get down to the nuts and bolts of what to do next, but that is first and foremost. There's other steps thereafter, but I didn't want to get too far ahead of myself.

J. Baugh: Let's talk a little bit more about receiving notice of a lawsuit. Do you have any firm do's or don'ts for a physician who receives the notice of a lawsuit?

Wendy: Yes, J, I do. And that first one I did state is to notify your carrier, and don't sit on that. Once a lawsuit is filed, there are time-sensitive deadlines that need to be met with respect to answering. I would say, my number one “don't” would be don't immediately access that chart that I know you're dying to. And, most importantly, don't make any changes to that chart. Sometimes it is instinctual to go to the medical chart. And I think that's fine if it's one that's in your office, but very often you have access to others, such as hospital records. If you're a clinician, radiology records, and you don't want to do that. You're leaving a metadata trail of what it is that you're doing at that point. And most importantly, you don't want to make any clarifications to that record now that you know that there's a legal concern, because obviously, that's something we're going to have to deal with later on.

You want to be careful about who you talk with, too, J. That it's instinctual to want to immediately discuss this with someone, and I think it is wise to go ahead and discuss that with somebody. Most importantly would be SVMIC, and legal counsel there, or they provide you with outside counsel to talk to. Certainly talk to your spouse, clergy, pastor, but be careful about these conversations, hallway conversations, with your colleague or a friend where you run some facts by them and get opinions. We, as lawyers, are always concerned about what will be discoverable later on down the road.

J. Baugh: Yeah, I've heard some horror stories, if you will, from different defense attorneys who have represented a client who then immediately discussed a lawsuit with someone else. And then they were asked about that in a deposition, and it just can create a lot of problems. And it's just easier to avoid that, if they don't talk with anyone until they've spoken with a defense attorney such as yourself, is that right, Wendy?

Wendy: I do agree. Yes, absolutely. And then I always get the question, well can I talk to my spouse about this? Absolutely. And we will certainly have other professional expert discussions about standard of care later on, but I think that first conversation should be with a lawyer. It's going to be privileged. You get to ask all the questions you want in that conversation, and you don't have to divulge those later on in discovering.

J. Baugh: Yeah, absolutely. So if you're on the receiving end of a lawsuit, as a physician, I'd imagine that you're unprepared for the emotional impact that a lawsuit can have. So, could you speak on that for just a bit?

Wendy: Absolutely. It is emotional, and it's very personal. And in particular, for those in the healthcare profession, that field has been carefully chosen by all of you to help people. And so to think that you are, on a day-to-day basis trying to help people, and now find yourself on an unpleasant end of a lawsuit where they're accusing you of not only doing something wrong, but causing harm to a patient of yours. So it's very emotional. It goes to the very core of your being, and it's just rattling. And so I think, at times I would think it's almost like, put yourself in the shoes of a patient who has just received some bad news. And the healthcare provider is calm and reassuring, and saying all is not lost, don't worry. There are ways to navigate this problem. That's what your lawyer should be telling you as well, all is not lost.

And this is even not as serious as a healthcare negative diagnosis. This is unpleasant, but this is something that we can deal with together. And you're going to have excellent counsel, and we're going to go through it together. And that's why you have insurance. And just because you are on the other end of a lawsuit, doesn't mean that you are a bad clinician, and it doesn't mean you're a bad person. And very often we are successful in these types of litigation. So I think it's a deep breath, gather yourself, and understand that just because you've been sued, doesn't mean that you've done anything wrong.

J. Baugh: So, I can imagine that anyone who is named in a lawsuit has to deal with the emotional impact of being a defendant, especially physicians in these types of lawsuits. So do you have any advice for someone who's really struggling emotionally as they go through a lawsuit?

Wendy: Yes, absolutely. And certainly, feel free to unload those concerns on your legal counsel. And I am - as a counselor - am able to help you certainly legally with that, and somewhat emotionally. But also it may go beyond that, where we recommend other resources with the Tennessee Medical Foundation, SVMIC has lots of resources at their fingertips to assist you with counseling, and some sort of reassurance as you go through this process. And, SVMIC also has the access to witness consultants, who in addition to your legal counsel can work with you to prepare you through those butterflies and emotions of testifying at deposition and at trial. So I think as the clinician, ask for help and there's plenty of help to be given, and lots of good resources available for you through your counsel and SVMIC.

J. Baugh: So, we've talked about a lawsuit reaching litigation. What really does that mean, and what should a physician expect? And also in that context, what is your role in the litigation process?

Wendy: I think one of the most difficult things for a clinician, a physician, an advanced practice provider to understand, is that the legal process is very slow. And the practice of medicine is based on day-to-day quick decisions, times, and having to make very important emergent calls, and a lawsuit can drag on for years. And while yes, there are timetables at the beginning in which you have to quickly answer a lawsuit, then you can prepare yourself for a marathon, not a sprint. So it's tough to be patient through that process and understand that to get resolution on this, it's going to take a long time. Particularly, of course, now J, we're dealing with COVID and that has really delayed what was already a lengthy process. Just trying to get to the end game of either a jury trial or a bench trial is difficult during this process as we work through that.

And as far as what is your role? I mean, a physician plays a leading star role in this process, and I encourage anyone who's named in the lawsuit to jump in and be involved, and be active in your defense, and work with that lawyer to help defend you. So, when the questions are sent to you by the lawyer, do the homework and work on those together. And then also, when it's time for your deposition, set aside time to work with your lawyer to really get ready for that process. I think the deposition is probably the single most time of a lawsuit for a defendant physician or clinician, and you really need to present well. And I often want multiple sessions to prepare for that process, because it's just not something you do in everyday life. Now, by the same token, don't jump out there and do research and go off independently, talking to experts and others, without consulting with your lawyer. Because again, that's discoverable unless your lawyer is doing that on your behalf. But I say, jump in there. You're more than part of the team, and help your lawyer help you.

J. Baugh: So Wendy, let me ask you a question that I get asked a lot in managing litigation, and I'm sure you get asked this question every time that there's a lawsuit. And that is, what if I don't want to settle the lawsuit? Is there a way that I can prevent that from happening?

Wendy: Yes. And you even may be in a better position than I, J, to answer that question, but certainly physicians have the ability to consent to settlement in SVMIC policies. And that is to say that SVMIC is not going to enter into settlement negotiations, mediation, or anything like that, without that physician's consent. And, why is that so important? Because it gives you control, number one. I think some people think that I don't have any control in this process, the attorney's making the decisions, the insurance company is going to settle out from under me. And that is just simply not the case. You're a vital part of the process, and that decision is not going to be made without your consent. That's important, of course, because there's some national data bank reportability when there are settlements, which are crucial to a physician's practice. And certainly, they want to be part of the process if there is going to be a reportable settlement. So, you have control on that.

J. Baugh: So, SVMIC is owned by physicians, and so the company is very sensitive to the fact that the physicians need to have control over the settlement process. And so, that's why we have that consent to settle provision in the policy. Now, let me ask you this question. How do you navigate the litigation process? It sounds like it's a bit overwhelming. So if I'm a physician, how do I navigate the litigation process?

Wendy: Well, I think this is where you let your legal counsel be your captain and be your guide, and not to say relinquish, forget about, and bury head in sand, but I do believe trust your legal counsel. And I think I have clients who are more actively involved than others, but I think it's important, just like you would follow up with your primary care physician, once you speak with your legal counsel, it's good to say, we're going to talk again in X days or X weeks, or after this motions decided or something. So you continuously have a loop, a circle back, to where you are maintaining communication. I, with my client and my client with myself, the lawyer.

And you know, I think that is helpful because it's a slow process. And I think frustration can build when you're dealing with months at a time. At least in terms of the physician, they may think nothing's really happening, because written discovery takes 30, 40, 60 days to complete. And then scheduling orders have deadlines that are set out three and four months. These things can drag on. But I think communication, consistent communication with counsel, is key to help you navigate that process. And ask questions. Challenge, ask questions. Say, “How long will it be? When will I hear from you next?” And vice versa, the lawyers should be asking questions as well.

J. Baugh: Yeah, that's a great point. Physicians often want their patients to ask them questions so that they can be involved in their own healthcare. And I think the same would be true of a physician who's named in a lawsuit. They would want the opportunity to ask questions, and to be able to have a good dialogue between the lawyer and the physician, just like the physician would want to have with their patient.

Wendy: I agree. And back to that analysis of, you know, sometimes we as patients, when we get a piece of news, we are so vulnerable and perhaps insecure that we can't really ask the questions we want to at the time. And it's important for us as patients if we can't do it then, to follow up and do it. And I think sometimes, nobody knows the medicine better than the physician, but they may not know the legal steps. And it's okay to go ahead and ask those legal questions about what do you plan on doing to attack this? How do you plan on handling this? Ask those, and you always will feel better when you get those answered.

J. Baugh: Yeah, absolutely. So let's talk for just a moment about juries. Could you help our listeners understand the process behind a jury? And I know that there are some trials that are tried by a judge and some by a jury. So is it better to have a judge than a jury?

Wendy: That's a million-dollar question right there.

J. Baugh: That's right.

Wendy: Literally. But I believe that all defense counsel would say they would prefer a jury to try a healthcare liability case than just an individual judge. And there may be cases, perhaps a case of clear liability or some sort of special circumstance, perhaps you've agreed to a high/low, where you might want one judge to determine the case. But, as I point out, just simply with a jury of 12 and a judge of one, as defendants, our job is to really only convince one individual that we did not breach the standard of care. Because if we've convinced one of those jurors, there is not going to be a unanimous verdict. And so if you have one judge, it's much easier for one side to convince one person than it is 12. And you know, juries continue to amaze me after 33 years, that for the most part... occasionally you get those juries that get carried away... but for the most part, they do a good job of assessing credibility of witnesses.

They're fresher than judges who sit every day, and hear witnesses testify every day. And those arguments we make about, perhaps the patient should have followed up, or the patient didn't take their medicine or something like that. Those are not lost on juries. They are patients, and so they hear those. And perhaps sometimes they hear them a little better, in my opinion, than a judge. So, even though it is 12 individuals, many of whom have no healthcare experience - and that's a little daunting to think that they're determining whether or not there was a breach of the standard of care - and if so, were their damages, they're guided by the judge instructing them on the law, and they are the sole judges of the facts. So I think the jury system serves us well for the most part. You know, I can't think of a situation, at least right now, J, where I would request a judge over a jury.

J. Baugh: Wendy, I've heard from several different defense attorneys that jurors really take their role seriously. And I'm guessing that's the same experience that you've had, is that right?

Wendy: Absolutely. It is amazing to me, because many times these cases will last weeks, and people have jobs, and childcare, and elderly family, and they devote their time eight to five or six, sometimes later, day in and day out, for about $10 a day, I think is what the pay is these days.

J. Baugh: Yeah, I think that's right. It's not much.

Wendy: It's not much, but it is one of our sacred civic duties, and it really is grounded in our constitution. And I just really strongly believe in it. And I think our jurors do too. I mean, they really do take it seriously, and really try to do the right thing.

J. Baugh: Yeah, I think that's right. So Wendy, before we wrap up, are there any other last-minute tips or advice that you would like to leave with our listeners?

Wendy: Well, I would say going forward that you hear about these lawsuits and you hear about numbers, that it's not a matter of if you will be in a lawsuit, or if you will receive notice, but it's a matter of when. I think some of that is true. A lot of those cases though, from SVMIC policyholders, end up favorably for defendants, and especially when they're tried. So I think you should take heart in knowing that if and when this case goes all the way to a jury, that the vast majority of these cases end up favorably for the defendant. But also I would say, when I look at cases just as a lawyer, and this is all in the retrospective, you tend to see when something goes wrong that it's a multitude of things that happened that created this situation, where there was a lack of communication, or a failure to report, or follow up on that patient who didn't show.

And so what I would say, this would be my advice going forward, that you're going to find those things in your day-to-day practice that don't necessarily end up in a bad result. But you'll say, well, oh, we failed to follow up with Ms. Smith. Now that's fine, because she's back in here six months later and there's no harm, no foul. But, I say take the time to investigate why we had that system failure and to correct it, or correct the employee that perhaps participated in that. Go ahead and tighten those belts anytime you see something like that, because that can help you down the road, potentially avoid a claim.

J. Baugh: Well, Wendy, that's some great advice that you gave, to use these situations as sort of a learning experience so that physicians can provide better care to their patients. And as a claims attorney, one last minute tip that I would have for physicians is, if you're wondering whether you should call SVMIC or not, go ahead and call us. If you get a letter and you're not quite sure what it is. Is it a notice letter? Is it some other kind of letter? There's no harm in giving us a call, so please do that anytime you have any kind of a question. If you wonder whether or not you should call SVMIC, just go ahead and call us, and one of the claims attorneys will be glad to talk to you.

Wendy: That's great advice.

J. Baugh: Thank you. And thanks Wendy for your time today, and helping our listeners understand the litigation process.

Wendy: Absolutely. Thank you for having me, and it's always a pleasure to talk with you, J.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast.

The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.